The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARY G. VALENZUELA, DOCKET NUMBER
Appellant, SF-0752-22-0039-I-1
v.
DEPARTMENT OF THE NAVY, DATE: February 3, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Bosko Petricevic, Esquire, Honolulu, Hawaii, for the appellant.
Thomas J. Tangi, Jacksonville, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for lack of jurisdiction . For the
reasons discussed below, we GRANT the appellant’s petition, VACATE the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
initial decision, and REMAND the appeal to the Western Regional Office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was employed as a GS-15 Physician at a Naval Health Clinic
in Hawaii. Initial Appeal File (IAF), Tab 7 at 61. She had various serious health
issues causing her to request Family and Medical Leave Act protected leave in
October 2018, which was approved by the agency. IAF, Tab 7 at 14, 31, Tab 10
at 44, 46-47. In April 2019, the appellant requested a reduced work schedule of
three 8-hour days per week and the ability to take paid or unpaid leave as a
reasonable accommodation. IAF, Tab 10 at 49-50. After the appellant provided
the agency with requested documentation, the agency granted the appellant
interim approval of her request in August 2019. Id. at 52-55, 57-59, 61. The
appellant noted that during this time she was also allowed 3.5 hours of
administrative time each week and was not required to have 100 bookable
appointments per week. IAF, Tab 7 at 14-15, 31.
¶3 In March 2020, after the COVID-19 pandemic started, the appellant was
placed on telework due to her high risk status resulting from her health
conditions. IAF, Tab 7 at 15, 32. She had surgery in June 2020 and she was on
medical leave until October 2020. Id. at 15, 32. In June 2020, a new individual
assumed command of the Naval Health Unit and, in August 2020, he received a
complaint from a local business owner alleging that the appellant committed a
Hatch Act Violation. Id. at 15, 32, 63-69. He initiated an investigation into the
purported Hatch Act violation. Id. at 15-16, 32-33.
¶4 Prior to her return to work, the appellant provided the new commander with
a medical note recommending that she stay on a 3-day work schedule with 2 days
of leave. IAF, Tab 10 at 55. In September 2020, the agency provided her with
the “final approval” of her request for accommodation, which was a modified
work schedule of four 10-hour days and the ability to schedule patients for
3
30 minutes per appointment, which was more than the standard allowance of
20 minutes. Id. The appellant also noted that the agency discontinued the
3.5 hours of administrative time that her colleagues received and required her to
have 100 bookable appointments each week, the same number as her colleagues.
IAF, Tab 7 at 20, 35. The appellant returned to work in November 2020 on a four
10-hour day schedule. Id. at 18, 35. The agency issued the appellant a Letter of
Caution in January 2021 for a Hatch Act violation of engaging in partisan
political activity while on duty. 2 IAF, Tab 10 at 84-85.
¶5 On April 11, 2021, the appellant requested a revision of her prior
accommodation, asserting that it was insufficient, especially given the loss of the
3.5 hours of administrative time per week, and she attributed the development of
left arm neuropathy to her increased work hours. IAF, Tab 7 at 11 7-22, Tab 10
at 87-90. She requested three 8-hour days each week, including 3.5 hours of
administrative time per week, scheduling in-person appointments in 30-minute
blocks with 20 minutes for virtual appointments, a headphone assistive device,
ability to take leave as directed by her treating specialists, an ergonomic
assessment, and having no procedures scheduled until her left arm neuropathy
was resolved. IAF, Tab 7 at 117. The agency confirmed receipt of the reasonable
accommodation request on April 19, 2021. Id. at 121-22. That same day, the
appellant emailed a letter of resignation to an agency human resources employee,
stating that she was resigning due to health reasons. 3 IAF, Tab 10 at 92, 94.
Following her resignation, on May 27, 2021, the agency rescinded the Letter of
2
The Letter of Caution stated that the appellant posted a photo while on duty that was
considered political because it discussed the concept of “white privilege” and “white
guilt” and how it is associated with “liberal indoctrination.” IAF, Tab 10 at 84.
3
In the April 19, 2021 email, the appellant noted that she intended for May 7 to be her
last day. IAF, Tab 10 at 92. However, she subsequently requested to delay the
effective date of her resignation to exhaust her leave and complete her work and other
administrative tasks. Id. at 98. The appellant’s Standard Form 50 lists May 14 as the
effective date of her resignation. Id. at 103.
4
Caution, observing that only the Office of Special Counsel has jurisdiction to
investigate Hatch Act violations. Id. at 105-06.
¶6 The appellant timely filed the instant appeal, 4 alleging that her resignation
was involuntary based on intolerable working conditions. IAF, Tab 1 at 6. The
administrative judge issued an order informing the appellant that the Board may
not have jurisdiction over her appeal, apprising her of how to establish
jurisdiction over an involuntary resignation appeal, and ordering her to file
evidence and argument on the jurisdictional issue. IAF, Tab 3 at 2-4. In
response, the appellant alleged that she was coerced into resigning when her new
supervisor and a subordinate manager investigated her for a fabricated Hatch Act
violation, issued her a Letter of Caution about engaging in partisan political
activity while on duty, denied her requests for reasonable accommodation without
engaging in the interactive process, and changed her schedule from part -time to
full-time with no administrative time. IAF, Tab 7 at 12-23, 33-35, 38-39.
¶7 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 11, Initial Decision (ID) at 1, 23. The administrative judge found that the
appellant failed to nonfrivolously allege that her resignation was coerced based
on intolerable working conditions and the agency’s denials of her reasonable
accommodation requests. ID at 22. He further found that the appellant failed to
nonfrivolously allege that she is a qualified person with a disability who could
have performed the essential functions of her position with the requested
accommodations. ID at 21-22.
4
On March 14, 2021, the appellant filed an equal employment opportunity (EEO)
complaint alleging, among other things, that the agency discriminated against her based
on her race, religion, and disability. IAF, Tab 6 at 5. She subsequently amended her
EEO complaint to include a constructive discharge claim and a failure to accommodate
claim. IAF, Tab 6 at 5-6, Tab 10 at 103. Thereafter, the agency issued a final agency
decision, finding that the appellant failed to prove her discrimination claim . IAF, Tab 6
at 5-18. As the administrative judge explained, there is no timeliness issue in this
Board appeal. ID at 7 n.2.
5
¶8 The appellant has filed a petition for review of the initial decision . 5 Petition
for Review (PFR) File, Tab 1. In her petition, the appellant reiterates that she
was coerced into resigning because of the denial of her reasonable
accommodation request and because of an improper Hatch Act investigation and
the resulting Letter of Caution. PFR File, Tab 1 at 12-19. She opines that the
administrative judge applied the incorrect evidentiary standard at the
jurisdictional stage and improperly separated her allegations of intolerable
working conditions into separate strands, which weakened the overall effect of
her allegations. Id. at 7-12. The agency has filed a response, PFR File, Tab 3, to
which the appellant has replied, PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 An employee-initiated action, such as a resignation, is presumed to be
voluntary and, thus, outside the Board’s jurisdiction. Vitale v. Department of
Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary resignation,
however, is tantamount to a removal and, therefore, is within the Board’s
jurisdiction. Garcia v. Department of Homeland Security, 437 F.3d 1322, 1328
(Fed. Cir. 2006) (en banc). To overcome the presumption that a resignation is
voluntary, the employee must show that it was the result of the agency’s
misinformation, deception, or coercion. Vitale, 107 M.S.P.R. 501, ¶ 19. The
touchstone of a voluntariness analysis is whether, considering the totality of the
circumstances, factors operated on the employee’s decision-making process that
deprived her of freedom of choice. Id.
¶10 The appellant has the burden of proving the Board’s jurisdiction by a
preponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). However, once
5
The appellant filed her petition for review in Hawaii, which is 5 hours behind Eastern
time. All pleadings filed via e-Appeal Online are time stamped with Eastern Time.
5 C.F.R. § 1201.14(m)(1). Although the appellant’s Board appeal was time stamped as
being filed on January 8, 2022, at 12:42 a.m., Eastern Time, it was actually filed on
January 7, 2022, at 7:42 p.m., Hawaii Time. PFR File, Tab 1 at 3. Thus, the
appellant’s petition for review, which was due on January 7, 2022, was timely filed.
6
the appellant presents nonfrivolous allegations of Board jurisdiction, she is
entitled to a hearing. Carey v. Department of Health and Human Services,
112 M.S.P.R. 106, ¶ 6 (2009). In determining whether the appellant’s
submissions set forth a nonfrivolous allegation of jurisdiction entitling her to a
hearing, the Board may consider the agency’s documentary submissions;
however, to the extent that the agency’s evidence constitutes mere factual
contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the Board may not weigh evidence and resolve conflicting assertions
of the parties and the agency’s evidence may not be dispositive. Ferdon v. U.S.
Postal Service, 60 M.S.P.R. 325, 329 (1994). 6
¶11 As noted, prior to the appellant’s return to work in November 2020, she
provided the agency with an updated medical note requesting that she continue to
work three 8-hour days. IAF, Tab 10 at 63. The agency did not grant this
accommodation and instead assigned the appellant a work schedule of four
10-hour days per week. In April 2021, the appellant again requested a reasonable
accommodation, asserting, among other things, that her current schedule caused
her “significant physical and mental stress, affecting [her] overall health,” and
that she had developed left arm neuropathy because of her working conditions.
IAF, Tab 7 at 117-22, Tab 10 at 87-90. She sought a restoration of her previous
reasonable accommodation that had been in place prior to her return to work in
November 2020. IAF, Tab 7 at 117. She also sought the 3.5 hours of
administrative time provided to her colleagues. Id. The appellant resigned soon
thereafter, citing health reasons. IAF, Tab 10 at 92, 94.
6
In her petition for review, the appellant argues that the administrative judge erred by
not applying the U.S. Court of Appeals for the Federal Circuit’s decision in Hessami v.
Merit Systems Protection Board, 979 F.3d 1362 (Fed. Cir. 20 20), regarding the weight
to give evidence at the jurisdictional stage of a Board proceeding. PFR File, Tab 1
at 7-9. We discern little difference between the court’s holding in Hessami and the
Board’s holding in Ferdon in this regard. Having found that the appellant made a
nonfrivolous allegation of Board jurisdiction, we need not discuss this issue further.
7
¶12 The denial of a reasonable accommodation that would have permitted an
employee to continue working despite her medical conditions, and that leads to
the employee’s resignation, is a wrongful action that can be the basis of an
alleged involuntary resignation claim. Hosozawa v. Department of Veterans
Affairs, 113 M.S.P.R. 110, ¶¶ 2, 6-7 (2010) (finding that an appellant
nonfrivolously alleged that her retirement was involuntary when she alleged that
the agency denied her request for a reasonable accommodation that would have
permitted her to continue to work full-time despite her medical conditions).
Here, the appellant asserts that her resignation was involuntary because the
agency denied her September 2020 request for accommodation that, according to
her doctors, would have permitted her to continue to work despite her various
health issues, and without which her health further worsened, causing her to
develop left arm neuropathy in April 2021.
¶13 We recognize the passage of time between the denial of the reasonable
accommodation request and the appellant’s resignation, but, at this stage of the
proceedings, do not find it significant. First, according to the appellant, her
health condition deteriorated because of the agency’s September 2020 reasonable
accommodation decision, and the fact that she worked under the accommodation
imposed by the agency for several months does not mean that the agency’s failure
was not the cause of the appellant’s resignation. Second, the Federal Circuit has
held that at the jurisdictional stage of a Board proceeding, the Board should not
discount the probative value of an allegation that supports a claim of
involuntariness because of the passage of time. Trinkl v. Merit Systems
Protection Board, 727 F. App’x 1007, 1010-11 (Fed. Cir. 2018).
¶14 In addition to the denial of her reasonable accommodation request, the
appellant also points to the Hatch Act investigation and the resulting Letter of
Caution as facts that made her working conditions intolerable and caused her to
resign. The Board has held that being subjected to unnecessary investigations
and being unjustifiably threatened with discipline do es not suffice to establish an
8
allegation of involuntary resignation. Baldwin v. Department of Veterans Affairs,
109 M.S.P.R. 392, ¶¶ 19-20 (2008). Nevertheless, in assessing whether a
resignation was involuntary, the Board must look at the totality of the
circumstances, and thus these individual incidents, when considered with the
other record evidence, may support a finding of involuntariness. Brown v. U.S.
Postal Service, 115 M.S.P.R. 609, ¶ 10 (stating that the issue in an involuntary
resignation appeal is whether, considering the totality of the circumstances, the
employee’s working conditions were made so difficult that a reasonable person in
the employee’s position would have felt compelled to resign), aff’d, 469 F. App’x
852 (Fed. Cir. 2011). Similarly, the appellant’s allegations of discrimination and
reprisal must also be considered as part of the total circumstances that may
support a finding of involuntariness even if the appellant’s evidence does not
support a finding of discrimination. 7 Markon v. Department of State, 71 M.S.P.R.
574, 578 (1996) (stating that at the jurisdictional stage of an involuntary
retirement appeal, the Board will consider allegations of discrimination to the
extent that they bear on the issue of voluntariness).
¶15 In sum, given the low evidentiary threshold required to constitute a
nonfrivolous allegation that her resignation was involuntary, we find that the
appellant has met that burden. Accordingly, we remand this matter to the
Western Regional Office for further proceedings, including the hearing requested
7
The administrative judge found that the appellant failed to nonfrivolously allege that
she was a qualified individual with a disability and thus a failure to reasonably
accommodate cannot support a finding of an involuntary resignation . ID at 21-22. The
medical condition that the administrative judge found rendered the appellant unable to
perform the essential functions of her condition, left arm neuropathy, was, according to
the appellant, temporary and caused by the agency’s failure to accommodate her in the
autumn of 2020. Thus, we do not agree with the administrative judge’s finding that the
appellant failed to make a nonfrivolous allegation in this regard.
9
by the appellant. To prevail on her claim, the appellant must now prove that her
resignation was involuntary by preponderant evidence. 8
ORDER
¶16 For the reasons discussed above, we vacate the initial decision and remand
this case to the Western Regional Office for further adjudication in accordance
with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
8
In her petition for review, the appellant requests that if t he appeal is remanded, it be
assigned to a different administrative judge. PFR File, Tab 1 at 20. Other than the
administrative judge’s adverse ruling, the appellant cites nothing causing us to question
the administrative judge’s ability to fairly adjudicate this appeal on remand. See
Argabright v. Department of Defense, 113 M.S.P.R. 152, ¶ 10 (2010) (stating that an
erroneous case-related ruling was insufficient to overcome the presumption of honesty
and integrity that accompanies administrative judges); Lee v. U.S. Postal Service,
48 M.S.P.R. 274, 281 (1991) (stating that the fact that an administrative judge has ruled
against a party in the past, or mere conclusory statements of bias, do not provide
sufficient bases for assignment of a new administrative judge). Accordingly, we deny
the appellant’s request.